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Lord Thomas of Gresford: I am most grateful to the noble and learned Lord the Lord Advocate for his very full and complete exposition of the reasoning behind the
proposals. Is the weakness that is identified a weakness that the public may feel that a hospital order is a soft option and therefore a sentence of imprisonment should be passed to express public displeasure in response to a particular crime regardless of the mental condition of the individual? Is that the weakness that is being pinpointed, or is there some other weakness that I have missed?
Lord Mackay of Drumadoon: No, that is not the weakness on which I seek to base this proposal. It is the fact that the court, in dealing with such offenders, is dealing with people convicted on indictment of serious offences for which a measure of punishment is appropriate to take account of the criminal conduct of which the accused has been convicted and offences for which a measure of public protection is required against the consequences of reoffending. There may be a perception on the part of some members of the public that a hospital order is a soft option; but it is the perception of those involved in the criminal justice system, whether as lawyers or other practitioners, that in some instances it is not an appropriate disposal for prisoners convicted of serious violent offences who have mental illness but who require to be removed from society for both punishment and public protection purposes. So it is not merely a question of pandering to any concern on the part of the public which brings this matter forward. It is a concern expressed by many practitioners in the field--lawyers in particular--that there is a gap that needs to be filled. We believe that this is the way to fill that gap.
The Earl of Mar and Kellie moved Amendment No. 96:
After Clause 5, insert the following new clause--
(" . At the end of paragraph 1(1) of Schedule 7 to the 1995 Act insert "or
(c) the offender consents".").
The noble Earl said: This amendment appears in a rather strange place on the Marshalled List; namely, between clauses about mentally disordered offenders. The amendment is concerned with supervised attendance orders. It is aimed at restoring the principle of having an offender's consent to a supervised attendance order. This was incorporated in the 1990 legislation but withdrawn in subsequent legislation in 1995.
Supervised attendance orders are part of a range of community sentences which are both useful and essential. Along with probation and community service, they are a good opportunity for the offender to begin to move on from offending. Counselling and advice are the key. But the offender must be ready for it--that is, beginning to doubt the wisdom of his criminal career. No social work report is required where a supervised attendance order is to be made. That can result in an order being made on an unwilling offender who would rather go to prison. There are some; it is easier than
Lord Mackay of Drumadoon: As the noble Earl will appreciate, supervised attendance orders were conceived and introduced by the present Government as an innovative means of providing the courts with an appropriate alternative to a custodial sentence for those who could not pay their fine and were therefore in default of the order to pay the fine and faced a term of imprisonment in default of that payment. They are designed to be a constructive alternative to sending the accused into custody for non-payment. Time and again we hear the cry that people who refuse or who are unable to pay fines should not be sent to prison for very short periods of time thereby clogging up the prisons with people who ought not to be there.
Were a choice to be offered for this disposal it would be the choice of either accepting the attendance order or of going to prison. We do not believe that that is an appropriate choice to give an offender. If he is brought before the court, it is wholly unrealistic to put that forward as a sensible option to which a responsible answer could be given which would effectively veto the right of the court to impose this order if the accused said so.
We are in an entirely different field from other community based disposals such as probation and community service orders where full co-operation is essential and it is reasonable to seek consent. In this situation a fine has been imposed and has not been paid--normally because an accused cannot pay it. Notwithstanding any views expressed by the accused, which can no doubt be articulated, we do not believe that the court should be precluded from seeking this as an alternative to sending a possibly young and impecunious offender to prison just because that was his stated preference. We do not believe that he should have that right. We do not believe that it would be constructively used were it to be available. Therefore, we do not find it possible to accept the amendment.
The Earl of Mar and Kellie: I hear what the noble and learned Lord says. In logical terms he is probably right. However, I recall leading a community service by offenders team. If everybody was reasonably content the work squad could get on with things; if anybody was unhappy, everybody became unhappy. The amendment
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar moved Amendment No. 97:
After Clause 5, insert the following new clause--
(" .--(1) Schedule 7 to the 1995 Act (supervised attendance orders) shall be amended as follows.
(2) In paragraph 4(2) at the beginning insert "Subject to sub-paragraph (4) below,".
(3) After paragraph 4(3) insert--
"(4) In the application of sub-paragraph (2)(a) above to an order made under section 236 of this Act, the court may alternatively revoke the order and impose such other disposal as it could have made had it not imposed a fine or a supervised attendance order."
(4) In paragraph 5(1), at the beginning insert "Subject to sub-paragraph (1A) below,".
(5) After paragraph 5(1) insert--
"(1A) In the application of sub-paragraph (1) above to an order made under section 236 of this Act, the court may alternatively revoke the order and impose such other disposal as it could have made had it not imposed a fine or supervised attendance order.".").
The noble Lord said: On the face of it this is a rather convoluted amendment tabled to elicit the Government's response to its terms and so that those who are involved with young people can consider whether the legislation should stand as it does at the moment. The result may very well be that a young person will end up in prison anyway as a result of his inability to pay a fine. Given the present restrictions on 16 and 17 year-olds, who do not receive any money from the Government, there is no way that they could possibly pay a fine and they will therefore end up in prison, whereas an adult might very well not end up there. That is the objective behind this proposal. I beg to move.
Lord Monkswell: I rise to support my noble friend on this amendment. Following the debate on the previous amendment, it is probably worth pointing out that, as I understand it, if the offender does not consent to a supervised attendance order in the manner that the noble Earl, Lord Mar and Kellie, suggested, it would be within the offender's power to breach the requirements of the supervised attendance order and, as a result, go to gaol. My noble friend's amendment provides another route to dispose of the problem and it may be useful for the Government to accept it.
8.30 p.m.
Lord Mackay of Drumadoon: Members of the Committee who are interested in this topic will be aware that it was raised earlier in the passage of the Bill and the response which the Government gave on that occasion is believed to be as valid today as it was then.
At present the relevant legislation as it applies to 16 and 17 year-olds allows the court, when dealing with any failure to comply, to vary the length of the attendance order or impose a custodial sentence. Before imposing a supervised attendance order on this age group, the court requires to have concluded that a fine--not a community-based disposal such as probation--is the appropriate disposal for the offence.
In those circumstances it will impose the attendance order either in default of the fine or on the basis that the offender is unlikely to have the capacity to pay the fine. In such a case the court will recently have concluded that the appropriate new order disposal is a fine but that the offender cannot pay the fine. We find it difficult to see what could have occurred in the interval between the imposition of the order and the offender's failure to comply which would enable the court to come to the view that some other disposal is now appropriate. For that reason we do not think it appropriate to accept changes to this aspect of the legislation.
A pilot scheme in respect of this age group will commence in Dundee in April this year. It is suggested that there may be some scope for fining offenders who fall within it and I would not demur from that suggestion. We believe that there will be value to be gained from this pilot scheme. We shall look at the results carefully and they will no doubt be made public in due course.
I recognise that the purpose behind the amendment is to reduce the risk of an early custodial sentence for members of this limited age group. However, we are optimistic that, by funding this project in Dundee targeted on young offenders who are made subject to these orders and firmly chasing them up and ensuring that their performance of the order is monitored, early indications of a possible breach will be spotted and action taken to prevent it.
I hope that, on an assurance that the Government are alive to the problems which offenders of this age face and are doing something positive to examine them in greater detail, the noble Lord will be persuaded that it is not necessary to insist on the amendment at the present time.
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